Today’s News & Commentary — August 3, 2018

Published August 3rd, 2018 -  - 08.03.183


The Massachusetts legislature this week passed a new bill that would limit the use of noncompete clauses in that state. The new law, which still must be signed by Republican Governor Charlie Baker, would allow employers to prevent their workers from moving to a competitor for a year after the worker departs the company. However, the company must continue paying the worker a portion of their salary – known as “garden leave” – which the law says should be either 50% of their annualized base salary or other “mutually agreed upon consideration,” which must be articulated in the agreement up front. Furthermore, the legislature stated that continued employment will not be considered sufficient consideration for a noncompete clause added to a worker’s contract after beginning their employment. The Washington Post cites several employment law experts who warn that the “mutually agreed upon consideration” could become a problematic loophole and source of litigation.

The Labor Department announced today that the U.S. economy added just 157,000 jobs in July, fewer than the 190,000 economists had expected. The unemployment rate dipped slightly, from 4% to 3.9%, but wages remained stagnant, barely keeping up with inflation.

The trade war with China continued on Friday, as the Chinese government threatened to impose $60 billion worth of new tariffs on American goods. The move comes in response to President Trump’s suggestion this week that his administration may raise tariff rates on certain Chinese goods from 10% to 25%. The tariffs could cause trouble in certain sectors of the American economy, particularly agriculture, which has encouraged many farm-state legislators to push back against President Trump’s trade policy.

The Seventh Circuit ruled yesterday in favor of a male butcher who claimed that “sexual horseplay” at his workplace violated his Title VII sex discrimination rights. His employer claimed that the trial court should have ruled in its favor as a matter of law, saying that the butcher should have been required to show more than just unwanted touching and taunting, but that the behavior was motivated by his sex. The panel, which included Amy Coney Barrett, a frontrunner for a Trump Supreme Court nomination, and two other Republican nominees, disagreed, saying that the hostile work conditions alone supported an inference that the plaintiff was discriminated against because of his sex, and that the plaintiff had introduced sufficient evidence that only men were targeted with such sexualized behavior. The opinion emphasized that Title VII is an anti-discrimination statute, not an anti-harassment statute.

Jacobin writes about the potential peril of a move toward “members-only unionism” in the wake of Janus, responding to suggestions like that in an op-ed written by Professor Sachs and Professor Catherine Fisk, which argued that the rule of exclusive representation puts unions in “open-shop” states in a double bind, whereby they are required to represent workers in collective bargaining but are unable to compel workers to contribute dues. The article cites the experience of teachers unions in Tennessee, which were weakened by a state law that prohibited any single union from being the sole representative of teachers in the state. “Ceding exclusive representation in order to write nonmembers off rather than winning them over will not result in the labor movement growing or becoming any more militant or successful,” the author argues. “Such an approach only sets the stage for further membership decline and union marginalization.”

On Wednesday, the NLRB made it easier for anti-union workers to disband their union. NLRB general counsel directed the agency not to object when such workers seek to intervene in related unfair labor practices complaints. The move gives anti-union forces more leverage to speed up decertification efforts, which unions often seek to stall through unfair practices complaints.

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